The High Court has ruled that An Bord Pleanála did not properly assess whether quarrying at Fountain Cross, Ennis, was a continuation of activity established before 1 October 1964.
In a judgment delivered on 23 February 2016, Ms Justice Baker answered a preliminary question in two judicial review cases in the negative. She found that the Board had not compared the nature and extent of the quarry’s pre-1964 use with its current use in the way required by law.
The cases concern the Board’s August 2012 decision to grant Whelans Limestone Quarries Limited permission to continue quarrying, processing limestone and aggregates, and carry out associated works. The applicant, John Hehir, sought to quash that decision. Separate proceedings under section 160 of the Planning and Development Act 2000 were adjourned pending the judicial reviews.
The preliminary issue was limited: whether the Board had been correct to determine that the relevant part of the quarry had an established pre-1964 use. Justice Baker said she could not decide the underlying facts herself in this judicial review module. Her task was to consider whether the Board used the correct approach when assessing the evidence.
The court accepted that commercial quarrying had taken place on part of the site before the appointed date. But the judgment said that this alone did not establish that the present activity was a lawful continuation. The Board needed to assess the original activity and compare it with current operations, including extraction rates, land acquisition and area, employment, traffic, machinery and methods, and excavation depth.
The evidence before the Board included 1955 newspaper clippings, aerial photographs, a 1999 council letter, land acquisition records and the site’s planning history. The judgment noted that the reported extraction rate had risen from 2,000 tons a week in 1955 to 20,000 tons a week in 2006, while the area in use had also expanded. The Board did not adequately analyse those differences or determine whether they reflected a proportionate continuation or a material change in use, the court found.
The ruling does not itself quash the 2012 permission or determine whether the current quarry use is lawful. It answers the single modular question about the Board’s approach. Justice Baker concluded that the Board had not established a sufficiently detailed pre-1964 baseline or properly compared it with present use. She also found the Board’s reasons inadequate in light of that failure.